THE LAW IS WHAT THE SUPREME COURT SAYS IT IS; WHAT WILL IT BE
THIS TIME AROUND?

Written by Francis Turay

Over the years, the law has been regarded to be “what it is and not what it ought to be”. Against this backdrop, the most senior court among the three Superior Courts of Judicature in the jurisdiction has such power to determine what the law is. As per the provision of section
124 of the 1991 Constitution Act No. 6, it gives the Supreme Court original jurisdiction to interpret any provision of the constitution.

Paragraphs (a) and (b) of section 124(1) stipulate as follows, where the ground of the Court’s jurisdiction shall be exercised.

a. in all matters relating to the enforcement or interpretation of any provision of this Constitution; and
b. where any question arises whether an enactment was made in excess of the power conferred upon
Parliament or any other authority or person by law or under this Constitution.

In relation to paragraph (b) of section 124(1), section 124(2) provides that;
(2) Where any question relating to any matter or question as is referred to in subsection (1) arises in any proceedings in any court, other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination;
and the Court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.

As stated in the aforementioned provision, the matter in hand is before the Court of Appeal,
where persons who were answering questions before the Commission of Inquiry are submitting their grounds of appeal against what the Commission founded. During the appeal process of the former president, Dr. Ernest Koroma, the determination/interpretation of
section 48(4) was posed to the Court of Appeal as the appellant argues that he must not be subjected to any civil and criminal proceeding. The said section provides that; 48(4) While any person holds or performs the functions of the office of President, no civil or
criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official or private capacity.

The Supreme Court with a quorum of not less than five judges is set to interpret section 48(4), and any decision reached by the Court during such interpretation shall have the effect of law and it shall form part of the judicial precedent of the court; in as much as the Supreme Court may deviate from its own previous decision when it appears right to do so, but shall be binding upon all other courts in the court structure, pursuant to section 122(2).

Revisiting our case laws, in the case of Ahmed Tejan Kabba AND Firetex Company (Civ. App 76/95) [1996] SLSC 3 (18 June 1996); before the Court of Appeal by former president Dr. Ahmad Tejan Kabba against Firetex Company, where he was appealing the decision of the High Court in a matter where the judgment was struck against him. Similarly, but in a
different fashion, section 48(4) was asked to be interpreted by the Supreme Court, as the question posed by counsel for the Respondent, Dr. Marcus Jones was “whether section 48(4) of the 1991 Constitution Act No. 6, precludes or prohibits the
president to continue an action he was pursuing before he became a president.

Even though we have no power to determine the interpretation of section 48(4) as it has been posed to the most superior court, one may tell you that there is no ambiguity in the said section, as the clause stipulating that, you can’t be subjected to any criminal or civil proceedings WHILE holding the office of the president and any previous proceedings shall
cease to continue.

The primary understanding we should implore is that the constitution makes provision for the Office of the President and not for former presidents, wherein any
such provision stipulated in any section found in Chapter V is for anyone holding the said office and we mostly refer to them as ‘Presidential Immunities’ and not ‘Former Presidents’ Immunities’

Therefore, in this situation, the question of immunity on the former president to be related with the provision of 48(4) could be categorized to be of little substance as its status of ambiguity is skewed than that of the one posed by Dr. Marcus-Jones in the Firetex appeal, as
it has no provision in the constitution and is believed to have some weight of ambiguity and needed to be interpreted by the Court.

Reiterating the words of Justice Midha during his resignation in the High Courts of India; “In the court of justice, both parties know the truth, it is the judge who is on trial”.

I pause here as we await the interpretation of the said provision by the Supreme Court.